Fighting Government Secrecy (with Patrick Eddington)

0:00:02.8 Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus. Joining me today is Patrick G. Eddington, a senior fellow at Homeland Security and Civil Liberties of the Cato Institute. From 2004 to 2014, he served as Communications Director and later Senior Policy Advisor to Representative Rush Holt. Welcome back to the show, Pat.

0:00:25.9 Patrick Eddington: It’s always good to be with you, my friend.

0:00:28.5 Trevor Burrus: So why are some Cato scholars may be guilty of treason?

0:00:34.6 Patrick Eddington: Well, I would say that the way that I would probably phrase it is that some folks at the Maritime Administration or some of their allies in the private sector who benefit conspicuously from the Jones Act which we can talk about a little bit here, if you’d like. Definitely…

0:00:52.9 Trevor Burrus: Oh, we don’t have to get to the Jones Act. It’s like, that’s not your area, but just for a second, explain what it is, for the listeners.

0:01:00.2 Patrick Eddington: Yeah, so the Jones Act itself has been around since, I believe, 1920. And the short answer is, this is a statute that requires anything that’s going to be shipped in Intracoastal American waters. So think, trying to move something from let’s say the port of LA to the Port of Tacoma in Washington State has to be carried on a US flagged vessel with a US crew. Now, for those who haven’t been kind of keeping score, the US Merchant Marine is minuscule compared to what it was a 100 years ago, and so this kind of completely outdated law winds up not only costing taxpayers and consumers an enormous amount of money on a yearly basis. And if you want the details on that, just look at what our colleague, Colin Grabow has written about that on the Cato website. But what it also does is, it can actually really endanger recoveries after hurricanes and things like that. And so Puerto Rico has had to request waivers repeatedly, Jones Act waivers repeatedly in order to actually be able to get supplies, recovery supplies into the territory in order to basically feed and clothe people and get them clean water and all the rest of that kind of stuff. So this is a topic trying to get Congress interested in doing something about the Jones Act has been a major priority of Cato for the last five years or so. And our colleague, Colin Grabow has just been remorseless and just methodically going after all the problems in this act.

0:02:41.7 Patrick Eddington: Well, some of his predecessor, some of our prior colleagues were very remorseless about it as well. And so we discovered through a completely separate source a couple of years ago that the Maritime Administration was keeping track of what Cato was writing and doing in this particular arena. So we made a decision to file some of our own Freedom of Information Act request to see what we could come up with. And lo and behold, after I managed to win a B5 deliberative process related appeal, and we can talk about what that means in more detail as we go along. They un-​redacted a bunch of material in which at a particular Maritime Administration Advisory Committee meeting in March of 2020, it was suggested by one or more people on this particular panel, and we don’t know whether this was a government person or somebody from private industry or some combination of two, but this is an official US government Maritime Administration Advisory Committee funded by your taxpayer dollars.

0:03:48.7 Patrick Eddington: And it was suggested that then President Trump should charge Cato and Mercatus Institute scholars, Mercatus Center colleagues with treason for what they’ve been doing to highlight the problems with the Jones Act, and it was also suggested that the President should let the Heritage Foundation know that he would essentially disavow them and never come to any of their events again, if they continue to pound away in the same way. So this is an example of the power of the Freedom of Information Act to shine light on the kinds of chicanery that we know goes on behind the scenes in government.

0:04:25.0 Trevor Burrus: Let’s get into that statute which a lot of people have heard of, I think, which is good. When it came about and how it’s purportedly… We’ll get into how it actually works in terms of how you have to sue them. But purportedly, what is it supposed to do and when did it come about?

0:04:45.1 Patrick Eddington: We owe the Freedom of Information Act existence to the late Representative John Moss, a democratic Californian. When he got into Congress, during the Eisenhower administration, basically the beginning of Eisenhower second term, he was part of a wave essentially of some new members in the House of Senate coming in who were really beginning to question a lot of these Cold War paradigms that had just been seemingly literally in stone for so long, and one of those, of course, is this whole issue of government secrecy. And five years before Moss took the helm of the sub-​committee on the house Government Operations Committee that he was a part of, five years before that of course, we had the infamous decision in the Reynold’s case, in which the Supreme Court of the United States let The United States Air Force basically refuse to provide any information about a particular B-29 plane crash that had occurred a few years earlier.

0:05:47.3 Patrick Eddington: And they were hiding this essentially behind national security, and this is where we get this entire concept of the so-​called state secrets privilege, even though there was absolutely nothing in the text of the Constitution in the United States that permits such a thing. But we can talk about that in more detail later. So in any event, Reynold’s case and some related things that were going on in this period really kind of, I think, torqued off Moss in a lot of ways, and during the Eisenhower administration, he had been trying to get information out of the civil service commission about the number of cases under the so-​called loyalty program, this is Executive Order 10450.

0:06:22.4 Patrick Eddington: And this is the one that led to the dismissal of thousands, tens of thousands of government employees over alleged communist ties and all the rest of that. And applicants as well, folks who were actually applying for federal jobs, so Moss started by going after the Civil Service Commission, and then he subsequently turns attention to DOD and he held a whole series of hearings in the sub-​committee between 1955 and 1959. And ultimately, issued reports that really just kind of called out a lot of the insanity that was going on there, and a lot of this is chronicled in Michael Lemov, really great book, People’s Warrior, John Moss and the Fight for Freedom of Information and Consumer Rights. We’re not gonna really talk about consumer rights here today, but I just wanted to go over some of these things very quickly that we’re in the 1966 report from the full Government Operations Committee, so these are just some of the examples of the kind of insanity that [0:07:15.9] ____ College were encountering.

0:07:18.2 Patrick Eddington: The National Science Foundation decided it would not be in the “public interest”, to disclose competing cost estimates submitted by bidders for the award of a multi-​million dollar deep sea study. The Navy ruled that telephone directories fell within the category of information relating to “internal management” of the Navy and could not be released. The Postmaster General, one of my least favorite entities, by the way, the US Post Office, ruled that the public was “not directly concerned” in knowing the names and salaries of postal employees. I would beg to differ. Many federal agencies refused to disclose the opinions of dissenting members, let’s say, on boards and commissions, for example, even when a vote on an issue had been taken, and then finally, the Board of Engineers for Rivers and Harbors, which ruled on billions of dollars of federal construction projects said that “good cause had not been shown to disclose the minutes of its meetings and the votes of its members on awarding contracts.”

0:08:12.3 Patrick Eddington: So again, an enormous amount of effort to try to conceal how your tax dollars are being expended, and again, none of this is so-​called national security-​related in any kind of conventional sense, we’re not talking about protecting the identities of spies or their sources, we’re not talking about protecting cryptography and existing code ciphers and all the rest of that kind of good stuff. So this is what gets Moss, and a lot of his allies really kind of juiced, and they finally do get… The bill introduced in the house, there is an identical Senate companion, but the House leadership which is democratically controlled at this point, at the behest of the Johnson administration, is basically trying to strangle a bill, right? So Moss, even though he’s been the lead guy on this for 12 years, by this point, he decides to go ahead and let the Senate move first, and that turns out to be just a brilliant parliamentary tactic, because the Senate moved it. No problem.

0:09:11.5 Patrick Eddington: And then he did have some allies in the house, but they’re not the usual suspects that you would expect, a couple of guys by the name of Don Rumsfeld and Jerry Ford. Rumsfeld at the time was at that point a two-​term member from Indiana, if I recall correctly. And then, of course, Gerald Ford was House minority leader at the time from Michigan, and would, of course go on to become subsequently Vice President and then President of the United States. I don’t think it’s any coincidence that these two guys were on the opposite side of the aisle, and they saw a really great opportunity to stick it to the Johnson administration. And as long as it serves a larger purpose, I’m fine. That works great. So the bill was finally moved to Johnson’s desk on June 20th. He basically was threatening to pocket veto, he got enormous amount of pressure, and then finally, one of his senior aides, Bill Moyers, who of course has gone on to become a major media maven over the course of the last five decades, really convinced him, “You need to do this,” and so he did sign it on July 4th, 1966, and then he went on the campaign trail course to claim credit for a bill that he opposed from the outset.

0:10:22.2 Patrick Eddington: So that’s how we essentially got the original Act, it has been amended multiple times 1996, 2002, 2007, 2009, and most recently in 2016 to address a range of things, from things as relatively prosaic as attorney’s fees, although if you’re an attorney finding a 4A case, there’s nothing prosaic about it, all the way up to the creation of the so-​called Foreseeable Harm Standard in the 2016 version. And I think it’s fair to say that every single one of these moves by Congress to amend FOIA over the last several decades has been driven by just constant agency intransigence, they’ll try to find one way or another to slip out or slip out from underneath, having to comply with the statute, and it continues to be a major problem. There is a bill that has not been publicly released yet, I will say by Senators Leahy and Grassley that is designed to address still more problems that a lot of us who do this for a living have been concerned about. It is unclear whether that bill will actually make it through this Congress or not because we’re very late, we’re on the cusp of the the mid-​terms, so we’ll see where that goes. I guess on that point, I just simply say, stay tuned.

0:11:40.2 Trevor Burrus: So what is the process? You request information from a department, do you have to really get specific on what you’re looking for, do you have to say, I am looking for everything about… Let’s use an example, pertinent to you, Gulf War Syndrome and I want everything that the CIA has about Gulf War Syndrome. Is that a bad FOIA request? Is that too broad?

0:12:10.6 Patrick Eddington: Yeah. You will basically wind up getting shot down, and courts will back up executive branch agencies and departments, if you make the mistake of using the phrase any or everything essentially in your request, there is a way to slip around that though which is still completely statutorily valid. And that’s where essentially what you’re asking for, are records, and I normally cite a specific part of the code, a US code that actually defines records so that, again, they don’t have a way to slither out of that aspect of it. And then I will endeavor to be as specific as possible. Obviously, if there is a specific report that you have seen mentioned in the press that has not been released, that’s pretty much gold, very difficult for them to deny that that necessarily exists. They’ll still try to do it. I’ve encountered that, but it makes it very hard. But if there’s also something that’s of extreme public significance, we could use something like the January 6th attempted coup, mass riot, whatever term are you prefer for that particular event. You’d also need to be relatively specific there, I think, because there’s obviously just a mountain of information that’s relevant there.

0:13:29.0 Trevor Burrus: Now, on the other side of this, so maybe you know specifically. I’m not sure if at your time in the CIA you ever were on the other side of a request, but you know what it’s like if a agency, if a government office of some sort gets a request, what do they do? What is the process that they’re supposed to go through there? Then I guess the other question, which is the hidden one, is what is the actual process because as you say they don’t like this very much, and it takes a lot of their time, actually.

0:14:03.0 Patrick Eddington: Well, it does. And almost no agency or department actually has like a line item for FOIA in their budget justification request that they send to OMB every year during the budget cycle, which to me, is a giant problem. I think that’s another statutory area that I think that Congress probably needs to weigh in on. They need to be requiring that.

0:14:27.2 Trevor Burrus: Yeah, there could be like five employees who just deal with FOIA requests, or something. Probably more. [laughter]

0:14:33.6 Patrick Eddington: Yeah. And what we’ve seen over the course of the last couple of decades especially, is a very conscious effort on the part of agencies and departments to outsource this. So they literally have contractors handling this. And as far as I’m concerned what that does, is it creates exactly the wrong kind of incentives for making the system work. Because what are the contractors essentially probably gonna get rated on? How many requests did they successfully close and make go away, right? So there is an incentive to find a reason to deny a request, which is why there’s an awful lot of stuff out there that can be really helpful if you wanna try to get involved in this thing. But there’s a little something called the FOIA Wiki. You can find this online. Our friends at the reporters committee for Freedom of the Press and a number of other organizations have been responsible for putting this bad boy together.

0:15:30.6 Patrick Eddington: It’s got lots and lots of great stuff on it about not just major previous court cases that implicate each one of these nine exemptions that come into play, but they’ve also got really great tips on there for how to handle making your own FOIA request. But the long and the short of it is, agencies, once you’ve actually submitted a request, an agency by statute, has 20 days to respond. And if they fail to respond in that 20 day period, on day 21 technically you can sue. Now, as a general rule, most people who work in this field will advise you against doing that. They’ll usually tell you, and I think it’s just a good practice, to simply make a telephone call to the agency if you can, if the agency actually makes a number available that you can actually do. My former employer at the Central Intelligence Agency, among the very worst, they have a fax number.

0:16:23.7 Trevor Burrus: I am shocked that they’re not very good at this, I’m just… So you have to send them a fax. Have you done this? Have you FOIA’ed CIA, then send them a fax saying, “Hey, by the way I sent you a FOIA request.”

0:16:37.7 Patrick Eddington: Oh, yeah, yeah. So you have to close that loop. You have to see whether or not they actually did get it. Then if they did confirm it, and they’re outside the 20 days, then technically you could go forward. But as a general rule, courts really frown on you coming to them unless you’ve exhausted all your administrative appeals and so on and so forth. Now, that doesn’t mean that suing at day 21 or 22, or whatever, is necessarily off the table. As long as you have access to counsel who can sue on your behalf. And if it’s a super high interest kind of event, breaking news or something like that, if you’re in a position to move on something like that, then it’s probably worth taking a shot. But as a general rule, most of the time when people are filing FOIAs, even within the public policy community here, and the media community in DC, it’s usually over stuff that’s been going on for a while and they’re trying to set themselves up for some major story, or something like that. But yeah, if you don’t exhaust administrative appeals, you are absolutely gonna get your rear end handed to you by the federal courts, especially if you’re in the DC circuit. That’s just axiomatic.

0:17:54.4 Trevor Burrus: That makes sense. But I see why they would do that, but okay, so you have… You get some information. I don’t know if you wanna use this specific example about something you’ve recently done, but you ask for something, get some information, and then usually it seems that you end up going back and saying, “You guys didn’t give me everything that you have,” or you have some suspicion. How do you form the suspicion that they’re holding it back? ‘Cause I would presume, as I think you would, that they are holding something back. That that would be just a general presumption. They don’t wanna give you this information. They’ll give you the littlest they possibly can, and so then you come back and you say, “Alright, give me more.”

0:18:38.9 Patrick Eddington: Yeah. So just for the benefit of our audience, it’s important to understand that when FOIA was created, there were a series of exemptions that agencies and departments could cite to withhold information. At present, there are nine of these. Exemption 1 deals with issues of classification and declassification. In other words, secret top, secret confidential, all that good stuff. Exemption 2, governs internal agency rules. Exemption 3, which is one of my least favorite is prohibited by other statutes from being disclosed. That’s a big one. Exemption 4, trade secrets and commercial info, that was the subject of a huge 2019 case, Argus Leader versus Food Marketing Institute. It is a big pain for an awful lot of folks, and we could talk about that if you’d like, but that’s also something that Lehe Grassley desperately wanna try to address. Exemption 5, within the public policy community here in DC, this is probably the one that makes people put their head through the wall.

0:19:42.5 Patrick Eddington: This covers so-​called discovery privileges, including the infamous deliberative process privilege. This is the one that allows them to basically hide anything about anything that is involving an alleged pending decision on a policy issue. Exemption 6 is personal privacy. Exemption 7 is law enforcement, and they’re about six different subcategories underneath that or they can basically weigh in. Exemption 8 deals with regulation of financial institutions. So SEC, that kinds of things. And Exemption 9 deals with public water wells. Don’t ask me, I have literally no idea why that was a thing.

[laughter]

0:20:21.3 Trevor Burrus: Maybe like poisoning the water, like some sort of fear.

0:20:24.8 Patrick Eddington: It could be. That’s the one I really haven’t researched that much.

0:20:30.2 Trevor Burrus: That was not on my bingo card, actually [laughter] except for what an exemption would be.

0:20:35.1 Patrick Eddington: It was not on mine either when I first started working this. Definitely.

0:20:39.8 Trevor Burrus: You mean…

0:20:40.7 Patrick Eddington: Yeah. We go…

0:20:41.1 Trevor Burrus: The fifth one is the one that’s most common for your work.

0:20:44.4 Patrick Eddington: Well, it’s common for an entirely too many people who work in this particular field. But in my work and what I do here at the nexus of the Bill of Rights and Security writ large, what I deal with more often than not is B1 and B3 exemptions because my beloved former employer, the Central Intelligence Agency through the CIA Act of 1949, gets to keep secret all of its operational records, which I think is insane. There’s no reason to do that for any length of time, let’s say beyond 50 years at the outside, the absolute outside, unless it deals specifically with a still living source, who is still providing information to the agency. I can understand that, and I can even understand that the B7 [D] in the law enforcement exemption arena, the B7 [D] exemption is the one that deals with confidential human sources.

0:21:40.9 Patrick Eddington: And if it’s a legitimately predicated investigation, that’s understandable. The problem is we often find out that these investigations are not legitimately predicated. And so you wind up essentially being able to use the statute to kind of cover what you’re doing, if you’re a federal law enforcement official, whether it’s on the up and up or not. So that’s one of the reasons why a lot of skepticism about the invocation of these particular exemptions is really important. And you mentioned B5, and in the case of this stuff that we’ve been dealing with the Maritime Administration on the Jones Act related matter, they were actually invoking B5 to try to prevent us from seeing what they had to say at a public event at the Center for Strategic and International Studies.

0:22:33.3 Patrick Eddington: Now, that’s a flagrant, just off the charts misuse of B5 in that circumstance. Here’s an example of a B5 invocation that would be completely spot on, a current treaty negotiation especially if that treaty negotiation was not exactly public. If the administration was trying to work out the basic details with the foreign country and then wanted to come public, that I can completely understand, to me that would be a legitimate invocation of B5. But more often than not, what we find, when we’re able to crack that shield is that they’ve used it to hide stuff that had no business being hidden in the first place, especially stuff that if it were made public would be embarrassing like accusing people in the public policy community of treason for being the public policy community.

0:23:22.1 Trevor Burrus: And that gets sort of into some of the stuff you’ve been doing for quite a while at Cato. And even in some ways before with looking at how the government is tracking or spying on various groups that are considered dangerous. And I’m putting that in scare quotes. And this of course is a rich history. You can start wherever you want. We have an entire timeline, we’ll link in the show notes that Pat has put together about this. It’s pretty… My favorite one is the Folk Singers, to be honest. This part on the Folk Singers because they’re all [0:24:00.2] ____ and we do that to begin with. They’re dangerous. We gotta spy on the Folk Singers. So they’ve liked us by our groups. They don’t wanna tell you about it, and they still do it today.

0:24:14.2 Patrick Eddington: And I think in the timeline that Trevor is referring to is called American Big Brother, which I created in early 2015, in part to basically help organize my thoughts for the current book that I have in peer review at Georgetown University Press. The triumph of fear and the entire concept here, of course, is that for the last century, century plus at this point, various federal agencies and departments, law enforcement, and then later on the actual intelligence elements have done an awful lot to spy on domestic civil society organizations. And I began this project, not just the timeline, but the book with the question and at the same time, the assumption that what the church committee did in the mid 1970s, up through the very late 1970s to try to circumscribe this stuff had probably been overcome by events. And when you look at the available data, that’s exactly what it shows. And so that informs my FOIA work at Cato because all these other groups that we work with, whether it’s IJ on the right or groups like Demand Progress on the left, or Defending Rights & Dissent, fill in the blank, groups that work in the immigration space, the American Immigration Council and so on and so forth, all those groups are basically out there in civil society working on a specific public policy problem that they wanna see solved.

0:25:50.7 Patrick Eddington: And the leadership of most of those organizations, whether it’s at the staff level or their CEOs or board of directors or whatever, that’s where their head is at, and that’s where it should be at in terms of trying to get their mission accomplished. So most of the time, they’re just not thinking about whether or not their activities might necessarily be drawing the interest of law enforcement, whether it’s a legitimate reason or not, 99% of the time not a legitimate reason.

0:26:17.8 Patrick Eddington: And so the core of what I try to do in my day-​to-​day practice here is essentially have their backs by putting in FOIAs with the FBI and other federal law enforcement and intelligence organizations to find out what records they have on our friends in the public policy community. And we’ve found a lot, not shockingly, and I don’t think we’re finding everything by any stretch of the imagination, because of another provision of FOIA, this is Section 552-C, that actually gives agencies and departments the ability to lie to you, the requester, about whether or not they actually have data if they have an ongoing investigation. And I’ve become convinced that, in some ways, there are hints in a lot of these… We have no records responsive to the FOIA responses that I’ve been getting because that’s kind of magic language, in my view. We’ve also, in the past, received what are known as Glomar responses, and that phrase Glomar is derived from a deep sea research vessel called the Glomar Explorer, that my former employer, the Central Intelligence Agency, I really hate having to mention them so much in this podcast, but…

0:27:33.0 Trevor Burrus: Oh, no. We have to do our little shout out, though, too, actually, by the way, ’cause one of the times you were on before, we called that episode, The CIA Listens to Free Thoughts, because hopefully they’re… ‘Cause they bought it for you, and so hopefully, they’re listening to this. So I just wanna give a shout out to our lords and masters at the CIA and say, “Hey, how’s it going?” Alright. Continue, Pat.

0:27:52.9 Patrick Eddington: And they do monitor me. We know that on the basis of a privacy act suite that I have underway in which literally major op-​eds that I have published during my time here at Cato have been declared non-​compliant by the CIA’s publication review board, even though they do not generally mention the Central Intelligence Agency by name, they’re usually talking about other three-​letter agencies, and usually in a congressional oversight context. And so coming back to this whole issue of the Glomar Explorer, the agency went to Howard Hughes, who owned the vessel, the late billionaire Howard Hughes, and wanted to use it to try to raise a Soviet ballistic missile submarine that had gone down the Pacific, the agency had good location data on it, to try to salvage the vessel and get any kinda documents off of it and so on and so forth. And they put out a cover story, essentially, when they were asked about it, that Glomar Explorer, what it was doing was it was out there doing deep sea mining for magnesium nodules, which is a thing, a legitimate thing, and apparently, a very lucrative thing, from what I can gather.

0:29:07.4 Trevor Burrus: And totally something Howard Hughes would just do, right? [chuckle] He might be looking for Atlantis at that point.

0:29:14.1 Patrick Eddington: Yeah. Yup, yup. So in any event, needless to say that that did not stick. Some journalists began sniffing around. And when they did and they began to get a good position to publish that the agency was using this vessel, the head of the agency at the time, Richard Helms, or not Richard Helms, Dick Colby, was so terrified about the operation being blown that he started going around to editorial boards, saying, “You can’t say this, you can’t do this,” etcetera, etcetera. Well, a news organization did do it, and they put in a FOIA because they were trying to actually get hard data on this. They weren’t content to just go with a rumor, which I think is a good journalistic practice. And the agency said, “We can’t confirm or deny that.” And it goes all the way up through the courts. And the court sided with the agency. And this is how the so-​called Glomar exception is created. And so if you get FOIA response that says, “We can neither confirm nor deny that we have information on you or this organization or whatever,” that is what a Glomar looks like. So there are lots of different ways that they try to slither out of responding, and that’s certainly one of them.

0:30:31.7 Trevor Burrus: Interesting. I know an obscenely large amount about submarines, I might have mentioned to you before, Pat, but I know a lot about submarines, and they did raise half of that submarine. They lost half of it in the… It fell back to… And then they buried the Soviet seamen who were… That they pulled up, and they sent the video to the Soviet Union and said, “We raised your sub, but we gave full honors to the deceased seamen.” So I don’t know if you know that part of the story, but yeah.

0:31:00.7 Patrick Eddington: Well, yeah, and it wasn’t until 2010 in the agency’s internal publication, Studies in Intelligence, that they actually acknowledged the operation.

0:31:11.2 Trevor Burrus: Oh, really? It took that long? We all knew.

0:31:12.7 Patrick Eddington: Yeah.

0:31:12.9 Trevor Burrus: Yeah. [chuckle] So I guess the question now is, “Who are they spying on?” What do you… What groups are you looking into in terms of who the agencies, three letter agencies might be spying on?

0:31:29.0 Patrick Eddington: Yeah. So we have a number of…

0:31:32.4 Trevor Burrus: Or at least have a file on. Yeah.

0:31:33.7 Patrick Eddington: Yeah. We have a number of examples that we have been able to surface. One of them, was actually the Albany New York chapter of the League of Women Voters. And here, well, I’m gonna talk specifically about some FBI examples, because it is the FBI that tends to be the agency at the federal level that tends to engage in this the most, although hardly exclusively. But because the FBI has had essentially the so-​called domestic security mission for almost its entire existence, this is really bread and butter for the FBI. So in the case of the Albany New York Chapter of the League of Women Voters in 2002…

0:32:17.0 Trevor Burrus: I have to be honest, I’ve been… I thought they were sketchy for quite a while. [laughter], especially the Albany Chapter, let’s be honest. [laughter]

0:32:27.0 Patrick Eddington: So the Albany FBI Field Office, goes to these folks in 2010 and says, “Hey, tell us about corruption in the New York State legislature.” And the people at the League of Women voters there we’re just like, “Say it again. We have no idea what you’re talking about.” So this was conducted under a relatively new FBI authority called an assessment. This was a category that was created in December of 2008 by the then Attorney General Michael Mukasey. And unlike a preliminary investigation or a full field investigation or an enterprise level investigation, assessments require absolutely no criminal predicate to be opened, just a so-​called Authorised Purpose. And guess who gets to decide what that Authorised Purpose is? The Department of Justice. So it’s a great gig if you can get it, I suppose, to be able to go out and do this kind of thing.

0:33:10.7 Patrick Eddington: So anyway, we managed to get that data including some of the agent notes and all the rest of that, from that particular interview. And then one of the more recent ones, was a July, 2016 Washington Field Office, so-​called Charity Assessment. This was a new one on me. I had never seen that specific category before, whereby, an analyst in the Washington Field office sitting at their desk just decided to take a look at a conservative women’s group called Concern Women for America, they’ve been around for decades. Absolutely no evidence of any ties to a hostile foreign power or foreign agent or agent of a foreign power. An impeccable record with the IRS and all the rest of that. But this individual in the FBI field office tooled around both on commercial databases like Charity Navigator and some others, but also apparently used classified or proprietary FBI databases to take a look at this particular organization. And they determined that there was nothing going on, but the point of the exercise was it should never have been conducted in the first place.

0:33:46.5 Patrick Eddington: And I think this just also gets to like the bureaucratic incentives right? ‘Cause if you stop and think about what do FBI Agents, what do their Supervisors, what do Unit Chiefs, what do Section Chiefs, what do all those folks up the chain, what do they get rated on at the end of the day? What do their performance reviews essentially revolve around? Well, how many assessments have you opened? How many PIs have you opened? How many full investigations? How many enterprise? How many people did you participate in getting plea deals from? And so on and so forth. So it becomes this giant bureaucratic numbers game. And when you lower the standard for opening an investigation, you are incentivizing people to do that. When you tell them that this is how in essence you’re going to be rated, right? You’re incentivizing that kind of behavior.

0:34:36.8 Patrick Eddington: And I think one of the most dramatic examples of the bureau investigating a non-​profit that we have come across so far, involves our friends at the National Security Archive over at George Washington University. This is an entity that has existed since the early 1980s. It was one of the first kind of, specialized purpose Freedom of Information Act, clearing houses and investigative elements that was created essentially, in that particular period. And they’ve done just amazing work over the years. As their title implies, they’re very, very focused on defense and foreign policy and things of that nature. But they were also concerned that their activities might have come to the attention of the Department of Justice might be of interest to the FBI. And so in 2005, they submitted a FOIA on themselves to the FBI and essentially said, “Tell us what you have.” And the agency, the FBI came back and said, “We don’t have anything.” Now, I strongly suspected that that was a lie, just given the nature of the work that they do and the kind of interaction that they have with foreign nationals. For example, the kind of events that the archive has done over the years.

0:35:46.8 Patrick Eddington: So it was one of the groups, on which I submitted a FOIA in 2019. And lo and behold, after more than a year, I get back, I guess about 50 pages of material that dates from the early 1980s. And contained in that material, in fact, was a cable from then FBI Director William Sessions, to the Washington Field Office and other elements saying, in essence, forward, everything that you have on the National Security Archive to us. And as I dug into this, what I realised was a former Justice Department attorney by the name of Quinn Shay who was one of their early Freedom of Information Act gurus in the Office of Information Policy, had defected from DOJ to the National Security Archive. And so they clearly had a keen interest, in what he was doing to help them essentially help the archive penetrate essentially this veil of secrecy that FOIA has actually designed, appears.

0:36:45.8 Patrick Eddington: So it’s fascinating reading. They clearly conducted a level of physical and possibly even electronic surveillance. The documents themselves are heavily redacted, but we know that archive officials did go to the Cuban interest section in DC in preparation for essentially some commemorative events around the Cuban Missile crisis and so on. And that they also traveled to Cuba itself in that period. And there’s no question that the bureau was tracking that. No doubt in my mind about that. So my message to anybody that is at a think tank that does work that involves interaction with Foreign Nationals, you can probably take it for granted [chuckle] that the FBI has taken at least some level of interest in your interaction with foreign nationals, and the events that that you’re putting on with them or inviting them to, and so on and so forth. And again, that raises all kinds of, at least in my mind, First Amendment and free association related questions.

0:38:38.8 Trevor Burrus: Oh, yeah. Absolutely. I feel like if you don’t have a file, you’re not doing your job right, at the same time…

[laughter]

0:38:44.0 Patrick Eddington: I feel that way.

0:38:45.4 Trevor Burrus: I’m flying to Iceland this evening as you know, and they probably opened a file on me and my friends there, and I’ve spoke in Serbia. I’ve spoke all over the world. So I better have a file.

[laughter]

0:38:56.8 Patrick Eddington: Oh, I’d be willing to bet our friend and colleague Doug Bandow has a large one.

0:39:01.3 Trevor Burrus: Oh, he definitely has a large file. Yeah.

[laughter]

0:39:05.5 Trevor Burrus: So that of course raises the question, what does the Cato file say?

0:39:10.6 Patrick Eddington: Yeah. So that involves Glomar. That’s the response we got the first time out. We got that response on 22 other groups in addition to ours, by the way. And the point that I try to make to some of my friends in the Privacy and Civil Liberties community is this, and it’s a very important point. When they give you a Glomar, it really does mean they have something. That’s what the historical record tells us so far. We know this from the ACLU’s case with respect to the drone wars where initially they got Glomar’d and the court said, “No, no, no. Too many administration officials have basically acknowledged this,” but they still let the agency withhold the data on the drone program. But that Glomar was pierced, other Glomars have been exposed in the end that have shown, in fact, that they have data on the organization in question. So in Cato’s case, I waited about another six months or so after I got that first Glomar response, and then I changed things up just a little bit, and I utilized not just the institute’s name but also a series of country and other keyword type material.

0:40:15.8 Patrick Eddington: And then they finally came back and basically said, “Yeah, we may have data, etcetera, etcetera, but they drag their heels. So we wound up suing. That suit is ongoing.” But the material that they’ve produced so far has been of a relatively, I would call, mundane nature. In the past, the institute has received death threats. It has received… Specific employees have received death threats. Other things have been a little bit more mundane. Back in the day, Ed Case invited Louis Free to come over [chuckle] and give a talk. This was…

0:40:52.4 Trevor Burrus: We had a conference in China. We had a conference in the Soviet Union…

0:40:55.2 Patrick Eddington: Yeah. This…

0:40:55.6 Trevor Burrus: In the mid-​’80s. Yeah.

0:40:56.8 Patrick Eddington: Yeah. So this was in 1996. But our specific interests in this particular circumstance centers around an incident that occurred in the fall of 2012, when we know, on the basis of a debriefing that I did of a Cato employee at the time when I arrived at Cato, that two FBI officers from the Washington Field Office came to our building and debriefed a colleague, interrogated a colleague, in that colleague’s office about some of the things that that colleague had written, all of which was completely First Amendment protected in every way, shape and form. The FBI has continued, thus far, to deny that they have any information about that particular incident. I don’t buy that. What they… What the FBI also does, and I think this is what I would put in the pro tip category, for those who are interested in going after the FBI with the Freedom of Information Act, the FBI consciously attempts to limit what they search.

0:41:57.8 Patrick Eddington: And they restrict it to what they call their Central Record System or CRS. And the primary database that they use there is called Sentinel. And this is where all the case management type files and all the rest of that are supposed to be. But I know, on the basis of my conversations with multiple former FBI officials both agents and intelligence analyst, now, that there’s a lot of stuff that never makes its way into Sentinel. The FBI uses a specific Microsoft-​based instant messaging system that is not required to be logged in any kind of records management system under national archives or records administration regulations. And we also know that an awful lot of the time, emails, and so far as we are aware, the FBI is still using the Microsoft SharePoint system for their email. Not all emails necessarily get logged into the system either. And sometimes that’s deliberate, and sometimes it’s just carelessness, and frivolity, but we’re very confident that there’s more out there and we are literally, as we speak, waiting for Judge Boasberg in the DC circuit here to take a look at… In camera at a lot of the material that the Bureau has withheld so far in that Cato v FBI lawsuit.

0:43:23.1 Trevor Burrus: Going forward. Hopefully listeners understand, and again, go look at the timeline, but we’ll put a link in the notes, but understand that the government does this and they’ve been doing it for a long time and they will continue to do it. But recently we’ve had these discussions about domestic extremism and different groups, of course, after the coup, insurrection, riot, whatever you wanna call it. This idea that we need to re-​up and reinvigorate our ability to spy on possibly subversive domestic groups. So what’s going on in that realm and should we be concerned?

0:44:00.5 Patrick Eddington: Yeah, for those who are interested, the Bureau has been involved at looking at so-​called white supremacist or sovereign citizen or militia-​type groups, at least as long as I’ve been alive. And I’m nearly 60. Now, a lot of my friends in the Privacy and Civil Liberties community, including my dear friend and colleague at the Brennan Center, Mike German, are of the opinion that the Bureau simply does not place the same level of priority on those groups as they have on, let’s say, Black Lives Matter, Antifa, etcetera, etcetera. Because we don’t have full access to the total number of reports that the Bureau has done on these groups, I’m not sure that we can make that kind of a definitive assessment. My gut tells me that he’s probably right, simply based on history, the history of the Civil Rights Movement and all the rest of that. But they were definitely looking at the Oath Keepers a decade ago.

0:45:03.7 Patrick Eddington: And there were plenty of reports about the Oath Keepers trying to recruit cops, trying to recruit military personnel. We have one report, I believe it’s from the FBI Atlanta Field office, I think. I’d have to go and double-​check that. But we have got one report about Oath Keepers buying billboard space near Savannah and Hinesville, Georgia, near major American military installations trying to recruit folks. Now, that’s probably largely covered under the First Amendment. There might be some commercial speech issues there. Trevor, you would be a better judge of that than I would. But a lot of this other activity that they were engaged in, in that period would have been covered under the First Amendment. That does not mean that there were not Oath Keepers, Three Percenters, folks like that, that were involved in criminal conduct. There clearly were, and we have some of those reports here as well. But I think what should give us all real concern, and this is why I was just going off so much last year about this Domestic Terrorism Prevention Act that Senator Durbin, who I like, I’ll just say flat out, I like Dick Durbin a lot.

0:46:11.1 Patrick Eddington: But he and Brad Snyder on the House side, had introduced this bill that I was of the opinion would simply create additional bureaucracies inside of the Department of Justice, Homeland Security, all the rest of that. There would never one be duplicative, but then what would also give those officials the grounds to say, “Okay, you’ve given us these new offices, but you haven’t given us additional authority.” Because that’s exactly where these kinds of debates and arguments almost inevitably end. It’s like, “Well, you’re asking us to do more, clearly we need more authority, and so on and so forth.” That’s not true. There are multiple statutes on the books right now, some of which of course are being used as we speak to prosecute people who are involved in the events surrounding January 6th. So that’s why I’m really concerned about this. It doesn’t mean that looking at individual conduct and individuals grouping together with bonafide criminal intent isn’t legitimate. That is legitimate, but you need to have a proper predicate for it.

0:47:13.6 Patrick Eddington: And just sitting around, utilizing all kinds of commercial surveillance software and tools to pull everything that you can off of YouTube and TikTok and fill in the blank for the platform. Pulling all that kind of data together, getting people’s credit reports and all the rest of that, essentially in a phishing expedition, I worry about that, not just from a rights violation standpoint. I worry about that in terms of missing actual potential intent. And I like to go back to this incident that happened. Thank God, nobody was hurt. But this was Christmas of 2021, I think. The incident in Nashville where that bomb went off outside the AT&T building. We find out after the fact that the Tennessee law enforcement authorities had been approached by the bomber’s live-​in girlfriend saying, “He’s got this trailer where he’s making bombs,” and they did not search the trailer.

0:48:15.1 Patrick Eddington: So when they get credible leads and they’re not followed up properly, that is when really bad things happen. This is what happened with the underwear bomber over Detroit. In the lead up to all of that, his father came into the embassy overseas and said, “I think my son is a threat.” You should pay attention to those. You really… If you’re in law enforcement, you should really be paying attention to that kind of stuff. But I think there’s a level of laziness that’s crept in because of the ease of the use of these digital tools. And sitting around and being able to aggregate this stuff and open just a slew of investigations, assessments, whatever, without any kind of real predicate, more often than not, all it’s creating is a lot of noise in the system. And that means almost invariably you’re gonna miss it.

0:49:02.9 Patrick Eddington: I think the biggest concern that I have more recently is what I’ve seen on the left side of the spectrum with Antifa or even Marxist or Socialist groups now or groups that have that kind of political orientation, self-​professed political orientation, who have begun to arm themselves in exactly the same way that the Three Percenters and the Oath Keepers arms. And to be clear, I am a gun owner. I have been a gun owner my entire adult life. I am a complete supporter of the Second Amendment. I believe that Heller, McDonald, Ambrew, and Rawl correctly decided. Many people would maybe argue about Bruen. But anyway, I tend to be pretty hardcore when it comes to Second Amendment stuff. But I have enough common sense to see that if you get two groups of basically armed militias, armed ideological militias, that wind up going at it on the streets of an American city or in an American suburban community, it isn’t gonna be just the people in those ideological militias that wind up wounding and killing each other. There’re gonna be a hell of a lot of other innocent people that are gonna wind up getting taken out here.

0:50:09.2 Patrick Eddington: And that to me is where we need to have a lot of the kind of police reform that our colleagues, Clark Neily and Jay Zwicker and others, have talked about. And I think that’s a big complaint that has been coming out of the African-​American, the Asian-​American, the Latino-​American community for decades, is this kind of police bias. But a lot of these folks on the left… And I will say that some of these groups that we’re talking about that I’ve also got FOIAs in on, to be clear, yes, I’m looking at both groups on the right and left here, they don’t trust the police. They don’t trust the police to protect them. And that’s why you’re seeing also people in the LGBTQ community, the gay and lesbian and transgender community, they are seeking to arm themselves. I don’t blame them. With the kind of hateful rhetoric, and in some cases, hateful actions that are taking place here, I think they’d be crazy not to be finding ways to engage in self-​defense, whether that’s learning martial arts or whether it’s learning how to shoot a side-​arm.

0:51:13.0 Patrick Eddington: But we also can’t walk away from the fact that with respect to these armed organized groups, having them square off against each other is not in anybody’s interest. It is literally a disaster waiting to happen. So my hope is by highlighting this problem, by trying to get folks to focus on this problem, and especially by trying to find ways to motivate police to get their act cleaned up and to focus on making sure that these groups do not become a massive public health and public safety problem, we can avert some major catastrophes here. So that’s become a big focus of mine over the course of the last six months or so.

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0:52:01.5 Trevor Burrus: Thanks for listening. If you enjoy Free Thoughts, make sure to rate and review us at Apple Podcasts or in your favorite podcast app. Free Thoughts is produced by Landry Ayers. If you’d like to learn more about libertarianism, visit us on the web at lib​er​tar​i​an​ism​.org.

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